NEW JERSEY LAWYER

DAILY BRIEFING      12/07/2005


News Briefs

GOVERNMENT ETHICS REFORM MEASURE MOVES FORWARD
An Assembly committee is expected to approve legislation Thursday to revamp the state government ethics panel so that it’s comprised mostly of public members. Acting Gov. Richard J. Codey is advancing the reform — identical legislation is in position for a full vote in the Senate — of the Executive Commission on Ethical Standards, shrinking it from nine members to seven. Under the new panel, four of the seven would be from the public. The panel currently has seven government employees and two public members. Codey says the measure will create a tougher, more independent panel to review ethics charges against state employees and impose stiff penalties. Over the years, the panel’s membership has been dominated by cabinet members or their top subordinates who rarely came down hard on violators. 12-6-05

GOVERNOR MAY GET REAL AFTER ‘ACTING’ FOR SIX MONTHS
It’s only six letters but it sure means a lot to some folks in Trenton in the way history will record their place in the sun at the Statehouse. The issue is when is a governor “acting?” Answer: Six months. After that, the person occupying perhaps the most powerful state leadership position in the country can simply adopt the title “governor” without the modifier. At least, that’s what’s outlined in S-2830, in position for a full Senate vote. In the ways of Trenton, it’s a singular measure that applies to two people in the state’s entire history. Acting Gov. Richard J. Codey took over last November 2004 after the resignation of Gov. James E. McGreevey. The bill also would apply retroactively to Donald T. DiFrancesco, who replaced Christie Whitman when she become environmental protection chief in the Bush administration. 12-6-05

POLICE RECRUITS’ CHANT PANNED
One, two, three, four. They can’t sing that song no more. And that’s a good thing, according to families of inmates whose jaws dropped when a class of Cape May County police academy recruits jogged in formation past the jail chanting, “Jailbirds, jailbirds, look and see. You’re locked up and we’re free.” About 50 future officers, led by their drill instructor, burst into the chant apparently without realizing they were within earshot of inmates’ family members waiting for the start of visiting hours, reported The Press of Atlantic City. Freeholder Ralph Sheets told the paper he and the public safety training center director discussed changing the lyrics to say “inmates” instead of “jailbirds” but nixed it. “Maybe some people are over-reacting, but it’s probably better if they aren’t singing those songs,” Sheets was quoted as saying. “If they want to chant, they can chant in the woods.” 12-6-05

PENNSY JUDGE SUES TO RESTORE CONTROVERSIAL PAY INCREASES
A Philadelphia judge has filed suit seeking to strike down as unconstitutional state lawmakers’ repeal of a controversial pay increase law. Common Pleas Judge Albert W. Sheppard filed suit late Monday, seeking to restore all the higher salaries granted by the Pennsylvania legislature in July and repealed several weeks ago. According to Sheppard’s suit, the repeal law subjects the judiciary to the “whim of the legislature” and compromises the constitution. Under the original law, salaries for the 420 county judges, including Sheppard, rose from $130,600 to $149,130. Citizens irate over the pay raise defeated Supreme Court Justice Russell M. Nigro on Election Day. 12-6-05

$36.5M MED-MAL AWARD AMONG CONNECTICUT’S HIGHEST
Jurors in Connecticut have awarded $36.5 million in what may be that state’s highest judgment in a medical malpractice case. The jury’s decision in favor of the family of 6-year-old Nicholas Cowles eclipses a $27 million award six years ago against Yale-New Haven Hospital and Yale University. Nicholas, delivered at Hartford Hospital, is blind, suffers from cerebral palsy and has brain damage. The jury found the hospital 60 percent liable and the attending physician 40 percent to blame. 12-6-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, DECEMBER 6, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, DECEMBER 6, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, DECEMBER 7, 2005.


APPROVED FOR PUBLICATION
HOSPITALS
KINSELLA v. NYT TELEVISION
Appellate Division, A-3308-04T5, approved for publication December 6, 2005. (16 pages). Facts-on-Call Order No. 92754

The names and addresses of patients admitted to a hospital are protected from disclosure by both the Hospital Patients Bill of Rights Act and the physician-patient privilege.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
SZEMPLE v. DAGGETT
Appellate Division, A-4859-04T1, December 6, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18918

Summary judgment based on the six-year statute of limitations under N.J.S.A. 2A:14-1 for the defendant attorneys in a legal malpractice action affirmed; the plaintiff was a former client who was convicted of murder and had been incarcerated since 1994; the complaint was filed on July 13, 2004, but all of the essential facts were reasonably discoverable by September 12, 1995, when the plaintiff received his case file and a new attorney was appointed to represent him following the defendants’ motion to be relieved as counsel; the plaintiff’s “serious health problems” were insufficient to toll the statute of limitations, and his claim that his imprisonment placed him in a constitutionally protected class for statute of limitations purposes was “frivolous.”

DOMESTIC VIOLENCE
WOOLRIDGE v. WOOLRIDGE
Appellate Division, A-4518-04T1, December 6, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18917

Final domestic violence restraining order against the defendant ex-husband based on findings of harassment and stalking affirmed; the finding of harassment was justified (1) under N.J.S.A. 2C:33-4(a) based on the ex-husband’s March 1, 2005 telephone call, in which he used “extremely coarse language,” and (2) under N.J.S.A. 2C:33-4(c) based on the ex-husband’s “course of alarming conduct,” which consisted of the March 1 call, his February 26, 2005 communication to the ex-wife stating that he knew where she had spent the previous night, and his “repeated” nonconsensual appearances at her home; the finding of stalking under N.J.S.A. 2C:12-10 was supported by the ex-wife’s testimony, including her assertions that the ex-husband had appeared repeatedly at her home, that he knew that she had not slept at home on February 25, 2005, and that he needed anger management classes.

PUBLIC EMPLOYEES
IN RE J.D.
Appellate Division, A-6849-03T2, December 6, 2005, not approved for publication. (19 pages). Facts-on-Call Order No. 18919

Final determination of the Merit System Board that restored the respondent candidate to the list of eligible candidates for appointment as a police officer reversed and remanded; the appellant Township had asked the Department of Personnel to remove the candidate from the eligible list because he had “failed the psychological examination”; the Board ordered an independent psychological evaluation, accepted the findings and conclusions of the independent evaluator’s report, and concluded that the Township had not shown that the candidate was psychologically unfit to serve as a police officer; however, the Board’s reliance on the report as the sole basis for its decision was unwarranted because the report was “fundamentally flawed” and contained “significant factual errors” concerning the candidate’s past psychiatric treatment; on remand, the independent evaluator should be given an opportunity to clarify and explain his findings after considering the records and complete history of the candidate’s past treatment.

COMMERCIAL TRANSACTIONS
JOHNSON v. JOHNSON
Appellate Division, A-1921-04T1, December 6, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18921

Summary judgment for the defendant bank in an action arising from its acceptance for deposit of a check payable to the plaintiff following an unauthorized, forged endorsement of the check by the plaintiff’s father reversed and remanded for trial; the father had established an account at the bank in his name in trust for his children following their mother’s death in August 1998; after the plaintiff reached the age of majority, the attorney for the father and his children sent a courier on June 6, 2000 to the administrator of the mother’s estate to pick up the check payable to the plaintiff for $89,201.33, which reflected the plaintiff’s share of his mother’s estate, and the check was deposited in the trust account that same day; the plaintiff filed suit in September 2003; the trial court granted summary judgment based on a finding that the plaintiff had relinquished control of the check through his inaction and therefore had ratified the forged endorsement; however, there was an issue of fact as to whether the plaintiff intended to ratify his father’s actions and had full knowledge of all of the material facts where the plaintiff denied (1) giving the check to his father, (2) authorizing his father’s signature, and (3) knowing that his father took the check, forged the endorsement, and deposited it.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.F.
Appellate Division, A-5038-04T4 and A-5398-04T4, December 6, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18920

Judgment terminating the defendant parents’ parental rights to their daughter affirmed substantially for the reasons expressed by the Family Part; the Family Part properly concluded that the plaintiff Division of Youth and Family Services had established by clear and convincing evidence all four prongs of the N.J.S.A. 30:4C-15.1a best interests test (1) based on the mother’s substance abuse during her pregnancy and her continuing substance abuse up to the time of trial and based on the father’s “persistent lack of involvement or desire for involvement in the care and custody” of his daughter, (2) based on the parents’ “continuing inability and unwillingness to provide a safe and stable home” for their daughter and the Family Part’s finding that further delay in the permanent placement of their daughter would add to the harm, (3) based on the finding that DYFS had provided the parents with “substantial services,” and (4) based on the finding that termination would not do more harm than good; the Family Part properly rejected the parents’ argument that kinship legal guardianship would be preferable to termination of their parental rights.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.R.
Appellate Division, A-4543-04T4 and A-4725-04T4, December 6, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 18922

Judgment terminating the parental rights of the defendant parents affirmed; contrary to the mother’s argument on appeal, the Family Part did not err by excluding a letter from the drug treatment program that she had been attending during the two-month period before trial because it was hearsay and because it could not be authenticated; turning to the merits of the case, there were no grounds to interfere with the Family Part’s findings and conclusions (1) where the record reflected the parents’ “long-standing substance abuse problems,” (2) where the parents refused to participate in parenting classes and the mother failed or was unable to address her psychiatric disorder, (3) where the parents made “little effort” to visit their child in foster care and “failed substantially” to establish a relationship with the child, (4) where the parents failed to participate in the required bonding evaluations, and (5) where the child had become “securely bonded” to her foster parents and there was “substantial support” for the conclusion that removing her from the foster parents would do more harm than good; the arguments about the possibility of placing the child with her maternal grandmother were “lacking in support.”

FROM THE FEDERAL COURTS
EDUCATION
C.N. v. RIDGEWOOD BOARD OF EDUCATION
Third Circuit, No. 04-2849, December 1, 2005. By Fisher, C.J. Also on panel: Alito, C.J. and Smith, C.J. Appealed from the U.S. District Court for the District of New Jersey. (60 pages). Facts-on-Call Order No. 92751

In an action by students and parents challenging the defendant school district’s student survey, the Third Circuit affirmed the grant of summary judgment for the district and its officials on the plaintiffs’ claims under the U.S. Constitution. The survey, which was designed to be voluntary and anonymous, asked students in grades seven through 12 about their experiences with drugs and alcohol, sex, physical violence, and suicide and their relationships with parents and others. The Third Circuit concluded that there was a genuine issue of material fact as to whether the survey as it was administered and as it was intended by the district was voluntary but that, even if the survey was not voluntary, the plaintiffs had not demonstrated a violation of the right to privacy or the First Amendment right against compelled speech.

INSURANCE
NORTHWESTERN MUTUAL LIFE INSURANCE CO. v. BABAYAN
Third Circuit, No. 04-3521, November 30, 2005. By Fisher, C.J. Also on panel: Sloviter, C.J. and Greenberg, C.J. Appealed from the U.S. District Court for the Eastern District of Pennsylvania. (38 pages). Facts-on-Call Order No. 92748

The Third Circuit affirmed the District Court’s grant of summary judgment to the plaintiff insurer based on the defendant insured’s material omissions on her application for disability insurance because those omissions constituted bad faith as a matter of law and rendered the policy void ab initio. The Third Circuit (1) declined to adopt the insured’s proposed “bright-line” rule based on the Third Circuit’s decision in Justofin v. Metropolitan Life Ins. Co. that bad faith never can be inferred as long as an applicant provides some relevant medical information but fails to give complete information and (2) concluded that there was “incontrovertible” evidence that the insured had omitted information in bad faith and that there was no relevant relationship between the information that she had provided and the information that she had omitted.


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